Employment Basics for Employers – E-mail and Voicemail Monitoring

This blog focuses on an employer’s rights to monitor electronic communications.

One of my Mountain View clients recently had an employee leave and wipe out all of his e-mails before he signed off for the last time. The employer immediately had its IT group recover the e-mails, and a corporate officer read through them. They found several emails where the employee was corresponding with others in the company about leaving and forming a competitive company. They called to ask me, after the fact, whether it was okay for them to read the employee’s emails and what rights they have now to act on the information.

There are a number of laws that affect access to another person’s emails. One of these, the Electronic Communications Privacy Act of 1986 (the “ECPA”) prohibits unauthorized persons to access electronic communications, including wire taps and stored communications like e-mails. If you violate the ECPA, you could be subject to fines and prison terms up to one year, as well as civil damages and attorneys fees. However, there are three exceptions which may allow employers to monitor employee communications.

First, there is an exception for employers to monitor communications within the ordinary course of business from telephone equipment provided and used in the ordinary course of business. So, employers can monitor calls, voicemails or e-mails employees use in their regular business affairs. However, if during your monitoring the employer finds that what it is reading is a personal communication, it must stop.

Second, there is an exception when the company has the consent of the employee. This usually means that the company has given the employees actual knowledge of a clear monitoring policy. For example, if your employee handbook says the company policy is that it can monitor and disclose calls, voicemails and e-mails whether business or personal, and the employees sign off on the receipt of the handbook using company equipment, with that policy in it, then you can listen in, read, and disclose communications whether they are business related or not. Also, note that there are differences between monitoring and disclosing information. In particular, California law requires the consent of both the originator and the recipient parties in order to disclose the contents of a message.

Third, there is an exception for the employer as the person or entity providing access to stored electronic communications. In other words, if you provide for voicemail on a telephone system you own, or e-mail on an internal system you own, you can access anything stored on those systems, but possibly only for messages sent internally.

Note that there are different rules related to union organization under the National Labor Relations Act which generally prohibit employer surveillance of protected union activities.

Despite these exceptions, this is a relatively new area of law that has not been enforced much by the courts, so I still recommend that employers only access e-mail for essential administrative and investigative purposes when there is a reasonable suspicion of employee misconduct. This is also important because studies have shown that employee monitoring can lower morale, which will likely lower productivity.